THE ROLE OF MEDIATORS IN OPTIMIZING MEDIATION BASED ON SUPREME COURT REGULATION NO. 1 OF 2016 AND SUPREME COURT REGULATION NO. 3 OF 2022 IN REALIZING THE PRINCIPLE OF SIMPLE, FAST, AND LOW-COST JUSTICE
Introduction
The settlement of civil disputes through litigation generally follows an adversarial approach and is oriented toward a win–lose outcome. Such a pattern of dispute resolution often requires a lengthy process, significant costs, and may potentially damage the long-term relationship between the disputing parties. Therefore, Indonesian civil procedural law has long recognized reconciliation efforts as an integral part of the judicial process. Judges are required to first attempt to reconcile the parties before examining the merits of the case, as stipulated in Article 130 of the Herzien Inlandsch Reglement (HIR) and Article 154 of the Rechtsreglement voor de Buitengewesten (RBg). This principle aligns with the objective of the judicial system to promote dispute resolution that is more efficient and oriented toward achieving substantive justice for the parties.
In order to strengthen this mechanism, the Supreme Court issued Supreme Court Regulation No. 1 of 2016 concerning Mediation Procedures in Courts (PERMA No. 1/2016), which integrates mediation as a mandatory stage in court proceedings. Subsequent developments in information technology led to the issuance of Supreme Court Regulation No. 3 of 2022 concerning Electronic Mediation in Courts (PERMA No. 3/2022), which enables mediation processes to be conducted virtually. These two regulations position mediators as central actors in amicable dispute resolution and as important instruments for realizing the principle of simple, fast, and low-cost justice as mandated in Article 2 paragraph (4) of Law No. 48 of 2009 on Judicial Power.
This paper aims to normatively analyze the role of mediators in optimizing the implementation of mediation based on these two regulations and their contribution to realizing the principle of simple, fast, and low-cost justice.
The Role of Mediators in Mediation Based on Supreme Court Regulation No. 1 of 2016
PERMA No. 1 of 2016 emphasizes that mediation constitutes a mandatory stage in the settlement of civil disputes in court. Article 3 paragraph (3) explicitly stipulates that a panel of judges examining a case who fails to order the parties to undergo mediation has violated statutory provisions, resulting in the decision being null and void. This provision demonstrates that mediation is no longer viewed merely as a procedural formality but as an essential component of the civil justice system aimed at encouraging amicable dispute resolution.
In the implementation of mediation, mediators play a crucial role as neutral and impartial parties. Mediators are responsible for facilitating communication between disputing parties in order to create constructive and open dialogue. Through this process, mediators assist the parties in identifying the issues underlying the dispute and encourage a better understanding of each party’s position and interests.
In addition to serving as communication facilitators, mediators also function as explorers of the parties’ interests. In many disputes, the legal claims submitted by the parties often reflect only their formal positions rather than the actual interests they seek to achieve. Through mediation techniques such as caucus (separate meetings) and reframing, mediators help the parties uncover deeper interests, thereby opening the possibility of finding mutually beneficial solutions—something that is often unattainable within the win-lose logic of courtroom litigation.
The role of mediators also includes assessing the good faith of the parties during the mediation process. Article 7 of PERMA No. 1 of 2016 provides indicators of absence or behavior reflecting a lack of seriousness in mediation, which may be categorized as bad faith, resulting in the imposition of mediation costs and litigation expenses. This provision is intended to prevent the misuse of mediation as merely a tactic to delay court proceedings.
If mediation successfully results in an agreement, the mediator assists the parties in formulating a written settlement agreement that fulfills the legal requirements of a valid contract as stipulated in Article 1320 of the Indonesian Civil Code. The agreement may subsequently be submitted to the presiding judge to be confirmed as a deed of settlement (acte van dading), which carries executorial force equivalent to a final and binding court judgment.
Optimization of the Mediator’s Role through Electronic Mediation (Supreme Court Regulation No. 3 of 2022)
The COVID-19 pandemic that struck Indonesia in 2020 accelerated the adoption of information technology in judicial administration. PERMA No. 3 of 2022 was issued as a response to this need and as part of the judiciary’s modernization agenda through the e-court system. This regulation allows the entire mediation process—ranging from mediation sessions, document exchanges, to the signing of settlement agreements—to be conducted virtually through electronic communication platforms provided or approved by the court, without requiring the parties to meet physically.
Through this electronic mediation mechanism, mediators are required to possess additional competencies beyond conventional facilitation skills. Mediators must be capable of interpreting communication dynamics in virtual environments—including non-verbal signals that are more limited in online formats—maintaining the attention and engagement of the parties during virtual sessions, and ensuring that the identity of each participant can be properly verified to guarantee the validity of the process. Article 5 of PERMA No. 3 of 2022 stipulates that electronic mediation may be conducted if the parties provide written consent and adequate technological infrastructure is available.
Mediators also bear the responsibility of safeguarding the confidentiality of mediation conducted electronically. The principle of confidentiality constitutes one of the key characteristics distinguishing mediation from open court proceedings. In the digital context, confidentiality challenges become more complex due to risks such as data leaks, unauthorized recordings, or access by unauthorized third parties. Mediators must ensure that the platform used meets adequate data security standards in accordance with Law No. 27 of 2022 on Personal Data Protection.
PERMA No. 3 of 2022 also introduces digital administrative mechanisms in the mediation process, including the use of electronic documents and electronic signatures in the drafting of settlement agreements. The validity of such electronic signatures is governed by Law No. 11 of 2008 on Electronic Information and Transactions (ITE Law) as amended by Law No. 19 of 2016, which recognizes the legal force of certified electronic signatures. This innovation provides significant convenience for parties located in different geographical areas to reach agreements efficiently.
Contribution of the Optimization of Mediators to the Principle of Simple, Fast, and Low-Cost Justice
Optimizing the role of mediators in mediation, whether through conventional or electronic mechanisms, makes a tangible contribution to realizing the principle of simple, fast, and low-cost justice. According to the Supreme Court Annual Report 2023, the success rate of mediation in district courts has shown an increasing trend following the enactment of PERMA No. 1 of 2016, although the national success rate still requires further improvement. This indicates that the effectiveness of mediation largely depends on the quality and competence of mediators in performing their roles.
Article 114 paragraph (2) of the UUPT stipulates that each Commissioner must perform his or her duties in good faith, with prudence, and with full responsibility. This provision establishes the minimum legal standard governing supervisory conduct.
From the perspective of simplicity, mediation offers procedures that are more flexible and less bound by the strict formalities of courtroom proceedings. The parties may determine the time, place, and procedures for mediation according to their needs, making the dispute resolution process more adaptive to the context and complexity of the case.
From the perspective of speed, PERMA No. 1 of 2016 limits the mediation period to 30 working days, which may be extended for a maximum of another 30 working days upon the parties’ agreement, as stipulated in Article 24. This time limitation encourages parties to focus on finding realistic solutions without undergoing litigation stages that may take years. The presence of electronic mediation under PERMA No. 3 of 2022 further accelerates the process, as eliminating the need for physical attendance allows more flexible scheduling of mediation sessions.
From the perspective of cost efficiency, mediation provides significant advantages because the parties can save various expenses typically incurred in litigation processes, such as transportation costs, accommodation expenses, higher attorney fees, and court administrative costs that increase with prolonged proceedings. Electronic mediation further strengthens this efficiency because parties located in different cities or islands can participate from their respective locations without incurring travel expenses.
Furthermore, mediation provides space for the parties to achieve a win-win solution. Because the agreement is reached through deliberation and mutual consent, mediation outcomes tend to be more psychologically acceptable to the parties and have a greater likelihood of voluntary compliance without requiring forced execution.
Conclusion
The role of mediators in Indonesia’s civil justice system is highly significant in promoting peaceful and efficient dispute resolution. Through the regulatory framework established in PERMA No. 1 of 2016, mediators act as neutral facilitators who assist the parties in building constructive communication, exploring the interests underlying disputes through techniques such as caucus and reframing, assessing the parties’ good faith based on Article 7, and formulating legally valid settlement agreements that may be executed as acte van dading.
Subsequent developments through PERMA No. 3 of 2022 expand the dimension of the mediator’s role by utilizing information technology in electronic mediation. This regulation not only enhances the efficiency of dispute resolution processes but also broadens public access—particularly for parties separated by geographical distance—to modern dispute resolution mechanisms while maintaining legal validity through certified electronic signatures under the ITE Law.
Recommendations
To continuously optimize the role of mediators, several policy measures are necessary. First, strengthening mediator certification and training programs that include digital facilitation competencies. Second, providing adequate technological infrastructure in all district courts as a prerequisite for the effective implementation of PERMA No. 3 of 2022. Third, conducting periodic evaluations of national mediation success rates as a basis for future regulatory improvements. Through these measures, the integration of conventional and electronic mediation can serve as a strong pillar in realizing the principle of simple, fast, and low-cost justice in a concrete and measurable manner.
Authored by:
Juventhy M. Siahaan, S.H., M.H.
Managing Partner, JBD Law Firm